BOY'S RESPONSES AT SEX ABUSE TRIAL UNDERSCORE LEGAL CONFLICT

By ROBERT LINDSEY

Published: January 27, 1985

LOS ANGELES, Jan. 26—
He is a small, sandy-haired child named Willie. Matter-of-factly, he answers yes, he was sexually molested by his teachers at the Virginia McMartin Pre- School. A moment later he seems to contradict himself. At other times, he repeatedly says, ''Don't remember,'' when asked about experiences he described to psychologists months ago.

The 7-year-old first grader is the first of dozens of children 6 to 10 years old who are scheduled to testify at a preliminary hearing involving sexual abuse charges against the school's founder and six of its teachers.

When charges in the McMartin case were first filed almost a year ago, they led to a new national examination of problems of child sexual abuse. Now the case is demonstrating how difficult it is for the judicial system to deal with serious charges brought by small children while still assuring defendants of their rights to a fair trial.

Several legal experts have questioned whether a proposal pending in California would constitutionally deprive defendants of their right to confront their accusers. That proposal calls for allowing video-taped accounts from children who say they were abused to be used in court.

Unpredictable on the Stand

Willie, who became hoarse and appeared to tire in his fourth day on the witness stand Friday, seemed, to reporters watching on television in an adjoining courtroom, to be intelligent, relaxed and possessed of all the sweetness and good nature of most boys his age.

But the unpredictability of his testimony has proved a minefield for prosecutors and defense attorneys alike, with Willie often appearing to give answers they do not expect.

He has described events that purportedly occurred at the nursery in suburban Manhattan Beach over a period lasting more than a year, when he was 4 to 5 years old.

The defendants are charged with 208 counts of molestation involving 41 children. The incidents involve allegations of sodomy and other abuse that were made against both male and female teachers.

Sometimes after Willie describes events that seem horrific to many of the adults hearing the testimony, he yawns or sighs or stretches his arms.

As he testifies, Virginia McMartin, the 77-year-old founder of the school, and six other teachers watch from a few feet away. In the adjoining courtroom, the images on the television screens are too small to determine it conclusively, but it appears that Willie keeps his eyes directed away from his former teachers except when Judge Aviva K. Bobb of Municipal Court asks him to point out one of them.

'Naked Games' Reported

In direct testimony earlier, Willie said he had been sodomized and otherwise sexually molested, had played a variety of ''naked games'' and had been told by his teachers that his parents would be harmed if he told them about these incidents. The ears of a pet rabbit, he said, were snipped off by one defendant, Ray Buckey, Mrs. McMartin's grandson, to demonstrate the seriousness of the threat.

Since then, Willie has been cross-examined by attorneys for six of the seven defendants and has sometimes contradicted his earlier testimony. At one point Thursday, for example, the child appeared to say that the only adults he had ever seen ''naked'' were his parents, seeming to contradict his earlier testimony that several of his teachers had been unclothed when they played what he called the ''naked games'' at the school.

To the prosecutor's surprise, Willie responded, ''Don't remember,'' when asked whether Mrs. McMartin had photographed him during the ''naked games.'' It was clear from his remarks, that he had earlier told prosecutors she had.

'Made You Say That'

At another point, a defense attorney asked the child if a psychologist who had questioned him about the alleged abuse had said, ''She thought Ray was a mean guy?''

A. Yeah.

Q. She said she thought Ray had touched you on the penis?

A. Yeah.

Q. She kind of made you say that, Didn't she?

A.Yeah.

Prosecutors from the Los Angeles County District Attorney's staff were obviously disappointed and flustered by defense efforts to impeach their witness. He was considered one of the most likely to be able to withstand defense challenges to his accounts.

But they said the child had not recanted the essence of his story and maintained that defense attorneys, sometimes with offhand jokes, had led the child into the seeming contradictions. They asserted that other children would substantiate the allegations of abuse and noted that a physician testified she had found physical evidence of abuse of Willie and others who attended the school.

Court Imposed Restrictions

At the preliminary hearing, now in its seventh month, prosecutors seek to persuade Judge Bobb there is reasonable cause to believe the defendants committed abuse and should be ordered to stand trial in Superior Court.

Steps have been taken to make it easier for the children to testify and to shield their identity. Reporters and casual spectators are barred, and only children's first names are used in the testimony reporters are allowed to monitor.

For the most part, defense attorneys have treated the young witness gently. But, under rapid questioning, the child has appeared confused or bewildered.

Protecting Child and Defendant

A few days ago a panel of legal experts called it essential to reduce the burden the courts place on child abuse victims. But the panel at a hearing here oconducted by the California Attorney General, John Van De Kamp, offered no solution.

Kenneth Freeman, a Deputy District Attorney for Los Angeles, asserted that, with a rise in the number of child abuse cases being prosecuted, there was new breed of defense attorney who know ''how frail children's egos are.''

''We have a crisis now that attorneys have an understanding of what it takes to win a case and attorneys willing to do it,'' he said.

Yet others at the hearing emphasized that any changes had to protect defendants' rights.

In the McMartin case the defense is trying to establish that no crimes occurred at the nursery and that the children invented stories of abuse to please adults who asked about it.

Mr. Latimer asserted that ''every psychological expert will tell you children fantasize about sex,'' including, he maintained, fantasies about sex involving adults.

Once the children told of abuse, Mr. Latiner said, they were afraid to recant. Referring to Willie, he said that an adult could get him ''to say anything you wanted him to say.''